West v. General Motors Corp., 665 NW2d 468 (Mich 2003). In Pace v. SIREN Eaton Shelter, Inc., No. 319223, the Michigan Court of Appeals held that reporting a suspected future violation of law is engaging in a protected activity under the WPA.]]>Thu, 26 Feb 2015 10:29:47 GMTWest v. General Motors Corp., 665 NW2d 468 (Mich 2003). In Pace v. SIREN Eaton Shelter, Inc., No. 319223, the Michigan Court of Appeals held that reporting a suspected future violation of law is engaging in a protected activity under the WPA.

Barbara Pace worked at SIREN Eaton Shelter, a domestic violence survivors shelter, for ten years. Pace alleged that roughly one month before her termination, a coworker told her that she intended to use shelter grant funds to purchase a stove for her daughter. Pace claimed that she then went and reported her coworker's plan up the management chain to Jessica Edel-Harrelson, the shelter's executive director. The defendants denied nearly all of Pace's claims. The trial court granted summary disposition to the defendants because Pace merely suspected that her coworker would improperly use funds in the future. In other words, no violation or suspected violation of a law had yet occurred. Pace, therefore, could not establish that she engaged in a protected activity.

But the Court of Appeals reversed. The case turned on whether Pace reported a "suspected violation of law" under the WPA. The defendants argued that a reasonable belief that a violation of law was being "actively planned" would be insufficient to establish a suspected violation of a law. The Court of Appeals disagreed and stated that defendants would essentially require a plaintiff to "(a) report the planned violation without the [protections of the WPA]; (b) remain silent until the violation occurs; or (c) undertake her own investigation to determine whether and when the planned violation has been completed." The first two options are inconsistent with the language of the WPA. The Court called the third option "foolish, if not dangerous and potentially unlawful." Finally, the Court held it inconsistent with the intent of the WPA to require a reporter to wait until she is certain that the violation is complete.

The Court of Appeals, therefore, reversed the trial court's grant of summary disposition to defendants. The case was remanded back to the trial court with Pace having established the prima facie claim under the WPA.
]]>
The couple divorced in 2008 and the court entered a judgment dividing most of their property 50-50. The court also awarded Irina four years of rehabilitative spousal support, a cash payment of $247,788 as an “equalizer,” and half of the value of QPhotonics—approximately $140,000. Seven years later, in Loutts v. Loutts, No. 318468, the Court of Appeals concluded that a motion to modify spousal support, made after the termination of spousal support, lacked the necessary support to establish a chance of circumstances since the divorce.]]>Thu, 12 Feb 2015 14:43:44 GMT
The couple divorced in 2008 and the court entered a judgment dividing most of their property 50-50. The court also awarded Irina four years of rehabilitative spousal support, a cash payment of $247,788 as an “equalizer,” and half of the value of QPhotonics—approximately $140,000. Seven years later, in Loutts v. Loutts, No. 318468, the Court of Appeals concluded that a motion to modify spousal support, made after the termination of spousal support, lacked the necessary support to establish a chance of circumstances since the divorce.

In this most recent trip to the Court of Appeals, Irina first challenged the trial court’s denial of her motion to extend and modify spousal support. She argued that her support should be increased and extended because she suffered from bleeding stomach ulcers and was unable to find work in Michigan’s bleak economy.

The trial court had dismissed Irina’s arguments because they were untimely. The trial court held that Irina needed to make her motion to modify and extend support prior to the termination of the support obligation. Irina made her motion in June 2013, but her spousal support terminated back in April 2013. The court, therefore, denied her motion. The Court of Appeals corrected the trial court, in that there is no such bright-line rule for the timing of a motion to modify or extend support. But it was a harmless error because Irina failed to show the necessary “change of circumstances” since the divorce judgment. Though she had allegedly developed ulcers and was unemployed in the midst of a dismal job market, the Court of Appeals affirmed that Irina failed to substantiate her claims that she could not find work. Perhaps the final nail in the coffin, while Irina claimed that her debilitating ulcers formed in March 2012, she failed to make her support motion until June 2013. The Court of Appeals, therefore, held that Irina failed to show the necessary change of circumstances in a motion to modify or extend spousal support.

Next, Irina argued that Georgii should have to pay her divorce-related attorney and expert witness fees. An award of attorney fees in a divorce action is proper “only as necessary to enable a party to prosecute or defend a suit” or when payment of the fees would require the fee-seeking party to invade the same assets they rely upon for support. Myland v. Myland, 804 N.W.2d 124 (Mich. Ct. App. 2010). The trial court held that Irina failed to carry her burden of proof that she could not bear the expense of litigation. In fact, she was awarded a cash equalizer payment of $247,788, rehabilitative spousal support for four years, $62,000 in a distribution from Georgii’s retirement account, and $50,000 as an advance against the property settlement. The Court of Appeals, therefore, held that the trial court did not err in denying Irina’s request for attorney and expert witness fees.
]]>Hodge v. U.S. Security Associates, Inc., No. 149984, reversed the Court of Appeals and held that an administrative law judge applied the proper legal standard in determining that an employee was not entitled to unemployment benefits.]]>Tue, 10 Feb 2015 16:10:41 GMTHodge v. U.S. Security Associates, Inc., No. 149984, reversed the Court of Appeals and held that an administrative law judge applied the proper legal standard in determining that an employee was not entitled to unemployment benefits.

Carnice Hodge was employed as a security guard for U.S. Security Associates, Inc. and was positioned at Detroit Metro Airport. Hodge was fired for accessing flight departure information on a computer at the request of a passenger, contrary to a policy that prohibits employees from accessing airport computers. Hodge requested unemployment insurance benefits, but the Unemployment Insurance Agency determined that she was disqualified under a provision of the Michigan Employment Security Act that disallows benefits for individuals discharged for work-related misconduct.

An administrative law judge and the Michigan Compensation Appellate Commission both upheld the Unemployment Insurance Agency’s determination. On appeal, however, the circuit court reversed, finding that Hodge made an error in judgment trying to reconcile her duty to help passengers with the policy against computer use, which did not amount to a denial of employment benefits. The Court of Appeals affirmed the circuit court, agreeing that Hodge’s violation was not sufficiently egregious to deny benefits.

The Supreme Court held that the circuit court and Court of Appeals erred because they applied an incorrect standard of review. The Court reasoned that the lower courts failed to give deference to the administrative judge’s determination and should have reviewed only to ensure conformity with the law and the existence of competent, material, and substantial evidence. Instead, the Court explained, the lower courts improperly reweighed the evidence in order to reach a different assessment. The Court concluded that the Michigan Compensation Appellate Commission’s decision to deny benefits was made within the correct legal framework and was not contrary to law.

Therefore, the Supreme Court reversed the judgment of the Court of Appeals and reinstated the judgment of the Michigan Compensation Appellate Commission to deny employment benefits.]]>Hodge v. State Farm Mutual Automobile Insurance Company, No. 149043, the Supreme Court has granted defendant leave to appeal the limited issues of whether a district court is divested of subject-matter jurisdiction when a plaintiff alleges less than $25,000 in damages in his complaint but seeks more than $25,000 in damages at trial, and if not, whether such conduct nevertheless divests the district court of subject-matter jurisdiction on the basis that the amount alleged in the complaint was made fraudulently or in bad faith.
]]>Tue, 10 Feb 2015 13:15:01 GMTHodge v. State Farm Mutual Automobile Insurance Company, No. 149043, the Supreme Court has granted defendant leave to appeal the limited issues of whether a district court is divested of subject-matter jurisdiction when a plaintiff alleges less than $25,000 in damages in his complaint but seeks more than $25,000 in damages at trial, and if not, whether such conduct nevertheless divests the district court of subject-matter jurisdiction on the basis that the amount alleged in the complaint was made fraudulently or in bad faith.

Linda Hodge brought an action in district court asserting a first-party no-fault claim. At trial, Ms. Hodge presented evidence far in excess of the district court’s $25,000 jurisdictional limit. The jury returned a verdict of $85,957 against State Farm, and the district court entered a judgment of $25,000 plus interest against the insurance company. State Farm appealed in the circuit court which reversed and issued an order stating that the amount in controversy in this case was in excess of the $25,000 jurisdictional limit of MCL 600.8301. The circuit court proceeded to order that the jury verdict and subsequent judgment be reversed and vacated for the reason that the court lacked subject-matter jurisdiction.

In a consolidated appeal, the Court of Appeals affirmed the circuit court’s ruling that the district court lacked subject-matter jurisdiction and affirmed the orders vacating those judgments. The Michigan Supreme Court has granted leave to appeal this decision.

http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20150204_S149043_72_01_149043_2015-02-04_or.pdf
]]>People v Harris, Nos. 149872, 149873, 150042, the Michigan Supreme Court granted applications to appeal the Court of Appeals’ July 15, 2014 opinion. Three police officers lied during an excessive force investigation and were charged with obstruction of justice. The trial court held that the officers’ false statements were barred in the prosecution for obstruction of justice under the Fifth Amendment and MCL 15.393. However, the Court of Appeals overturned the lower court’s decision and reinstated the charges. On appeal the court will consider: 1) whether the Disclosures by Law Enforcement Act, MCL 15.391, et seq. bars the use of false statements by a police officer in prosecution for obstruction for justice; and, 2) whether the defendants’ signed waivers bar the use of false statements in criminal prosecution under their state and federal rights against self-incrimination. PAAM and CDAM are invited to file briefs amicus curiae.

]]>Mon, 09 Feb 2015 14:03:19 GMTPeople v Harris, Nos. 149872, 149873, 150042, the Michigan Supreme Court granted applications to appeal the Court of Appeals’ July 15, 2014 opinion. Three police officers lied during an excessive force investigation and were charged with obstruction of justice. The trial court held that the officers’ false statements were barred in the prosecution for obstruction of justice under the Fifth Amendment and MCL 15.393. However, the Court of Appeals overturned the lower court’s decision and reinstated the charges. On appeal the court will consider: 1) whether the Disclosures by Law Enforcement Act, MCL 15.391, et seq. bars the use of false statements by a police officer in prosecution for obstruction for justice; and, 2) whether the defendants’ signed waivers bar the use of false statements in criminal prosecution under their state and federal rights against self-incrimination. PAAM and CDAM are invited to file briefs amicus curiae.

In November 2009, Detroit police officer, defendant Hughes approached Hodges-Lamar’s car at a gas station and started questioning him. Hughes proceeded to pull Hodges-Lamar from the car, search him, slam him up against a car, punch him several times to the ground, pick him up by the collar, slam him up against the car again, and then push Hodges-Lamar towards two other Detroit police officers, defendants Harris and Little. Hodges-Lamar went the hospital for his injuries and reported the incident to a different police officer. The Detroit Board of Commissioners Office of the Chief Investigator interviewed the three defendants, Hughes, Harris, and Little, in 2010. Before the interview, the defendants received constitutional rights forms stating that refusal to answer the questions could result in dismissal from the police force, and also their answers would not be used against them in subsequent criminal proceedings. With that information, Harris and Little stated that the only physical contact Hughes had with Hodges-Lamar was a pat down search and Hughes stated that he pulled Hodges-Lamar from the car but used no other force. Eventually, a video recording from the gas station was discovered, documenting Hughes’ physical assault of Hodges-Lamar. The defendants were charged with obstruction of justice.

The district court held that the officers’ false statements were barred in the prosecution for obstruction of justice under the Fifth Amendment and under MCL 15.393, which precludes use of a police officer’s “involuntary statements” against that officer in later criminal proceedings. However, the Court of Appeals overturned the lower court’s decision, reinstating the obstruction of justice charges against all three defendants. The Court reasoned that while the Fifth Amendment provides the right to remain silent, it does not protect lying; relying heavily on United States Supreme Court case, Garrity v New Jersey, 385 US 493 (1967). Similarly, the Court interpreted the MCL 15.393 “involuntary statements” phrase to include only true statements, meaning that defendants’ false statements fell outside of the statute’s protection. The Michigan Supreme Court granted the applications to appeal the Court of Appeals’ decision. On appeal the Michigan Supreme Court will hear consider whether the officers’ false statements should be barred from use in criminal proceedings against them under self-incrimination rights, and/or under MCL 15.393.
]]>People v Bennett, No. 149264, the Michigan Supreme Court vacated the Oakland County Circuit Court sentence and remanded the case for resentencing. The defendant was convicted of conspiracy. Under MCL 777.18 and People v Bonilla-Machado, 489 Mich 412 (2011), the conspiracy offense is considered a crime against public safety not a crime against a person. Thus, the defendant was wrongly assessed 25 points for offense variable (OV) 13. The Michigan Supreme Court orders the trial court to resentence defendant within the guidelines, or alternatively allow defendant to withdraw his guilty plea.
]]>Mon, 09 Feb 2015 14:02:00 GMTPeople v Bennett, No. 149264, the Michigan Supreme Court vacated the Oakland County Circuit Court sentence and remanded the case for resentencing. The defendant was convicted of conspiracy. Under MCL 777.18 and People v Bonilla-Machado, 489 Mich 412 (2011), the conspiracy offense is considered a crime against public safety not a crime against a person. Thus, the defendant was wrongly assessed 25 points for offense variable (OV) 13. The Michigan Supreme Court orders the trial court to resentence defendant within the guidelines, or alternatively allow defendant to withdraw his guilty plea.
]]>Adanalic v. Harco National Insurance Co., No. 317764, should have paid the personal injury protection (“PIP”) benefits and then exercised its subrogee rights to pursue worker’s compensation benefits or reimbursement from the other no-fault insurer. ]]>Mon, 09 Feb 2015 11:32:21 GMTAdanalic v. Harco National Insurance Co., No. 317764, should have paid the personal injury protection (“PIP”) benefits and then exercised its subrogee rights to pursue worker’s compensation benefits or reimbursement from the other no-fault insurer.

In this no-fault action, plaintiff Salko Adanalic and the intervening hospital plaintiffs sought first-party benefits from defendants Harco National Insurance Company (“Harco”) and Michigan Millers Mutual Insurance Company (“Millers”). Adanalic had contracted with DIS Transportation (“DIS”) to pick up, haul, and deliver various loads of cargo. His truck and semi-trailer were insured by Harco under a no-fault insurance policy issued to DIS. Adanalic also had no-fault insurance through Millers under a policy issued to his wife. While Adanalic was pulling a loaded pallet onto his semi-trailer, the loaded pallet fell and pulled Adanalic, who was attached by the pallet straps, down with it, injuring him. Adanalic sought workers’ compensation benefits from DIS, but DIS denied his claim on the ground that Adanalic was an independent contractor. Adanalic then sought no-fault PIP benefits from Millers and Harco, but each denied his claims. The trial court found that Millers was liable to plaintiffs for no-fault PIP benefits. Millers appealed, asserting (1) Adanalic was not entitled to payment of first-party PIP benefits; and (2) Harco, rather than Millers, was the highest priority PIP insurer. On cross-appeal, plaintiff Spectrum Health Hospitals (“Spectrum”) argued that Millers and/or Harco were liable for attorney fees and penalty interest due to their unlawful failure to promptly pay PIP benefits.

First, the Court rejected Millers’ contention that, in order to obtain PIP benefits under the parked vehicle exception provided by MCL 500.3106(1)(b), the injuries must result from direct physical contact with property being loaded or unloaded. MCL 500.3106(1)(b) allows recovery where “the injury was a direct result of physical contact with . . . property being lifted onto or lowered from the vehicle in the loading or unloading process.” The Court concluded that Millers’ construction of the exception was an attempt to “fundamentally rewrite the statute” in a manner wholly unsupported by caselaw, as the statute does not require that the property itself inflict the injuries. Adanalic was entitled to no-fault PIP benefits because the facts establish that Adanalic’s injuries were “a direct result of physical contact” with the pallet being loaded.

The Court then rejected Millers’ argument that it had no responsibility to pay Adanalic’s PIP benefits because workers’ compensation benefits were “available” to him under MCL 500.3106(2) because DIS denied Adanalic’s workers’ compensation claim. The Court also rejected Millers’ argument that it was not primarily liable by affirming that DIS’s no-fault insurer Harco was not liable under MCL 500.3114(3) because Adanalic was an independent contractor rather than an employee of DIS.

Finally, the Court agreed with Spectrum’s argument on appeal that it was entitled to attorney fees under MCL 500.3148(1). Millers did not pose a legitimate question of statutory interpretation by simply inventing an alternative reading of the parked vehicle exception that was inconsistent with the statute as written and the prior caselaw applying it. Millers should have promptly paid Adanalic’s PIP benefits and exercised its subrogee rights to seek workers’ compensation or PIP benefits from DIS or Harco, respectively. Its failure to do so was unreasonable and inconsistent with the no-fault act’s purpose of providing prompt recovery for loss arising from motor vehicle accidents, making Millers liable for reasonable attorney fees.
]]>People v. Lyles, No. 150040, the Michigan Supreme Court granted mini-oral argument to consider an application for leave to appeal where the issue is whether a trial court’s failure to a give a portion of a jury instruction on the importance and effect of character evidence was outcome determinative. Here, the defendant was convicted of first-degree murder and sentenced to life in prison without parole. At trial, the court did not read the following portion of Michigan Criminal Jury Instruction 5.8a(1): “[e]vidence of good character alone may sometimes create a reasonable doubt in your mind and lead you to find the defendant not guilty.” On appeal, the Court of Appeals held that the defendant was entitled to the entire instruction and that the error required reversal because failure to read the entire instruction deprived the defendant of the full benefit of his character evidence. The Michigan Supreme Court ordered the parties to submit supplemental briefs on whether it was more likely than not that the failure to give the character evidence instruction properly was outcome determinative.

]]>Sun, 08 Feb 2015 20:08:45 GMTPeople v. Lyles, No. 150040, the Michigan Supreme Court granted mini-oral argument to consider an application for leave to appeal where the issue is whether a trial court’s failure to a give a portion of a jury instruction on the importance and effect of character evidence was outcome determinative. Here, the defendant was convicted of first-degree murder and sentenced to life in prison without parole. At trial, the court did not read the following portion of Michigan Criminal Jury Instruction 5.8a(1): “[e]vidence of good character alone may sometimes create a reasonable doubt in your mind and lead you to find the defendant not guilty.” On appeal, the Court of Appeals held that the defendant was entitled to the entire instruction and that the error required reversal because failure to read the entire instruction deprived the defendant of the full benefit of his character evidence. The Michigan Supreme Court ordered the parties to submit supplemental briefs on whether it was more likely than not that the failure to give the character evidence instruction properly was outcome determinative.

]]>Coalition Protecting Auto No Fault v. Mich. Catastrophic Claims Assoc., No. 314310, the Michigan Supreme Court granted mini-oral argument to consider whether the Insurance Code, MCL 500.134, violates the Michigan Constitution because it provides a statutory exemption to the Freedom of Information Act (FOIA) without reenacting and republishing sections of FOIA that are altered or amended.]]>Fri, 06 Feb 2015 08:19:39 GMTCoalition Protecting Auto No Fault v. Mich. Catastrophic Claims Assoc., No. 314310, the Michigan Supreme Court granted mini-oral argument to consider whether the Insurance Code, MCL 500.134, violates the Michigan Constitution because it provides a statutory exemption to the Freedom of Information Act (FOIA) without reenacting and republishing sections of FOIA that are altered or amended. The Coalition Protecting Auto No-Fault (CPAN) wants access to the Michigan Catastrophic Claims Association’s claims data, and sought that information under the state’s Freedom of Information Act. MCCA refused to disclose the requested information because it is expressly exempted from FOIA by MCL 500.134. CPAN argues that because the exemption does not reenact and republish the sections of FOIA that are altered or amended, it violates Article 4, § 25 of the Michigan Constitution. The Court of Appeals rejected that argument because it concluded that the statute does not does not revise, alter, or amend FOIA, which actually contemplates statutory exemptions.

]]>Wyandotte Electric Supply v. Electrical Technology Systems, Inc., No. 149989, the Michigan Supreme Court has granted leave to appeal the Court of Appeals decision holding that under the Public Works Bond Act, MCL 129.201 et seq., if the notice of supplying goods to the principal contractor is sent by certified mail as prescribed by the statute, the notice is sufficient even if it is never actually delivered. In granting leave to appeal, the Supreme Court has specified that the issues briefed on appeal should include whether the plaintiff served on the principal contractor the 30-day notice within the meaning of MCL 129.207, whether the plaintiff is entitled to damages, if any, that include a time-price differential and attorney fees, and whether MCL 600.6013(7) is applicable to the judgment in this case.]]>Fri, 06 Feb 2015 08:14:16 GMTWyandotte Electric Supply v. Electrical Technology Systems, Inc., No. 149989, the Michigan Supreme Court has granted leave to appeal the Court of Appeals decision holding that under the Public Works Bond Act, MCL 129.201 et seq., if the notice of supplying goods to the principal contractor is sent by certified mail as prescribed by the statute, the notice is sufficient even if it is never actually delivered. In granting leave to appeal, the Supreme Court has specified that the issues briefed on appeal should include whether the plaintiff served on the principal contractor the 30-day notice within the meaning of MCL 129.207, whether the plaintiff is entitled to damages, if any, that include a time-price differential and attorney fees, and whether MCL 600.6013(7) is applicable to the judgment in this case.

Defendant KEO & Associates, Inc. KEO was hired by the Detroit Public Library to complete a renovation of the library’s main branch. KEO, as general contractor, in turn hired Electrical Technology Systems (“ETS”) as its electrical subcontractor on the job. ETS then entered into a sub-subcontract with Wyandotte Electric Supply Wyandotte for the supplies necessary to complete the project.

In the agreement between ETS and Wyandotte, ETS promised to pay for materials within 30 days of delivery, with all late-paid invoices subject to a 1.5% time-price differential. ETS further agreed to pay one-third of any attorney fees necessitated by Wyandotte’s collection efforts. In August 2009, Wyandotte supplied a quote to ETS for the materials needed on the library subcontract. This quotation expressly incorporated a 1.5% time-price differential. Wyandotte sent notice by certified mail of its first supply of materials to ETS, however, it is undisputed that Wyandotte’s notice to KEO did not reach its destination.

ETS failed to pay its accumulated debt to Wyandotte for the library project materials and Wyandotte filed suit against ETS and against co-defendants KEO and Westfield Insurance Company for recovery from the surety bond. The Court of Appeals held that Wyandotte complied with the 30-day notice provision of the Public Works Bond Act as the plain language of the statute makes no mention of actual receipt of this notice as a condition precedent to filing suit. If the claimant uses the method of service outlined in the statute, in this case certified mail, then proof of actual receipt is not required. The Court further held that the attorney fees and time-price differential awarded to plaintiff represent sums “justly due” under the contract because they were an integral part of the contract between the parties and the surety was liable for that amount. The Court of Appeals also awarded post-judgment interest under MCL 600.6013(7), finding that the contract between Wyandotte and ETS constituted a written instrument evidencing indebtedness with a specified interest rate.